Introduction

Criminal Liability has been defined as being responsible for a criminal act. It is an established principle of criminal law that no one should be convicted or held liable for a crime unless some measure of subjective fault can be attributed to him.

This invariably means that such a person must not only actively perform the act (actus reus) but also possess the guilty intention (mens rea) required for the commission of such offense. These two (2) elements are a sine qua non to the commission of any offense as failure to establish those elements leads to an acquittal.

However, it is not all acts that are to be punished. There are certain defenses that the law provides which exculpates criminal liability. It is provided for in Sections 76 to 106 of Indian Penal Code (IPC), 1860.

These defenses are based on the fact that although the person committed an offense, he cannot be held criminally liable because as at the time the offense was committed, he was justified of his acts or he had no intention to commit such offense.

According to Section 105 of Indian Evidence Act, 1872, the burden of proof lies on the accused to prove the existence of a situation of general exceptions.

This is provided in the following cases, K.M. Nanavati v. State of Maharashtra 1962 AIR(SC)605, Dayabhai Chhanganbhai Thakkar v. State of Gujrat 1964 AIR(SC) 1563 and Vijayveersingh v. State of Uttar Pradesh 1990 AIR(SC)1459.

 

General Exceptions recognized under the IPC

The General Exceptions stipulated under Sections 76 to 106 of the IPC, 1860 includes the following:

• Mistake of fact (Sections 76 and 79)
• Accident (Section 80)
• Necessity (Section 81)
• Infancy (Sections 82 and 83)
• Insanity (Section 84)
• Intoxication (Sections 85 and 86)
• Judicial Act (Sections 77 and 78)
• Consent (Sections 87- 91)
• Communication (Section 93)
• Duress (Section 94)
• Trifles (Section 95)
• Private Defense (Sections 96 – 106)

 

Mistake of Fact-

This exception excludes a person from criminal liability where the person was mistaken as to the existence of some facts or ignorant of the existence of such facts. The mistake must pertain to “fact” and not law as “Ignorance of the law is not an excuse”. This is encapsulated in the maxim “ignoratia juris non excusat”.

Essential elements-

For the defense to be established, the person must satisfy the following that:

• He is bound by law to perform an act
• He has the belief himself that he was bound by law to perform such act
• Such belief was a mistake of fact and not law
• He exercised such belief in good faith

In Chirangi v. State 1952 CR LJ 1212, the accused went with his son to a hill in order to gather leaves. Thinking it was an animal, he assailed him with an ax. The accused was said to have been mistaken and thus acquitted.

 

Judicial Act-

This exception excludes judges and it is done in compliance with an order of the court.

Essential Elements-

For the defense to be established under the act of a judge (Section 77), he must satisfy the following that:

• The act was performed by a judge
• The judge acted judicially in the exercise of the power conferred upon him
• He exercised such power in good faith

In Surendra Kumar Bhatiya v. Kanhaiya Lal & others AIR 2009 SC 1961, it was held that a collector exercising his power under the Land Acquisition Act is not a judge neither could he act judicially.

For the defense to be established in compliance with a court order (Section 78), the following ingredients must be satisfied:

• There must be a judgment or an order of the court
• Such judgment or order must be in force
• The court must have jurisdiction to pass such judgment or order
• The person must exercise good faith believing that the court had jurisdiction

 

Accident-

This exception excludes a person from criminal liability where such acts occur as a result of an accident. This means that although the person performed the act, such act was devoid of an intention.

Essential Elements-

For the defense to be established, he must satisfy the following:

• The act must be an accident or misfortune
• The act was done without criminal intention or knowledge
• It must be in the performance of a lawful act
• It must be exercised in a lawful manner and by lawful means
• Such an act must have been done with care and caution

In the State Government v. Rangaswami 1952 CriLJ 1191, A reported to his friends that there was a Tiger or Hyena which was in the vicinity. D gave his loaded gun to A who went towards the “animal” from one direction while B and C were moving towards the animal from the opposite direction, A then fired the “animal” which kills E.

The court held that it was an accident and the fact that the gun was unlicensed would not deprive him of the benefit of the immunity.

 

The doctrine of Necessity/Self Preservation-

This defense comprises self-defense, defense of property and the exercise of reasonable care during medical or health operations. Where deaths occur during defense to life or property from an actual threat, it constitutes the defense of necessity.

Essential Elements-

For the defense to be established under the act, he must satisfy the following:

• The act was done with the knowledge that it is likely to cause harm
• It was exercised without criminal intention to cause harm
• It was exercised in good faith
• It was done to prevent other harm
• It could be exercised to a person or property

This defense has limitations which are provided in the Doctrine of self-preservation means that a person cannot commit an offense to preserve himself from harm or death. This was illustrated in the locus classicus case of R v. Dudley and Stephen 14 Q.B.D 1884 where the seamen were held liable for murder because they committed murder to preserve their own life.

 

Infancy-

According to Section 82 of IPC, nothing is an offense which is done by a child under seven years of age. Thus, a person under seven years of age is not criminally liable for any offense committed.

By virtue of Section 83 of IPC, a person under the age of twelve but above the age of seven is not criminally liable for any offense committed provided such child has not attained maturity of understanding to know that he ought not to do the act or make the omission.

When the child has attained maturity of understanding that he ought not to perform such an act, he becomes criminally liable. In Krishna Bhagwan v. State of Bihar 1991 1 BLJR 321, A, a child stole a necklace and immediately resold it to B. The court held that the fact that the child sold the necklace immediately shows that the child has attained maturity of understanding.

 

Insanity-

This exception excludes a person from criminal liability as a result of unsoundness of mind if, at the time of the commission of the offense, the person was incapable of knowing the nature of his acts and that that his actions were wrong or contrary to law.

In Madhukar G. Nigade v State of Maharashtra 2006 CriLJ 1305, the court held that the benefit of Section 84 is that at the time when the offense was committed, the accused was unsound mind and unable to understand the consequences of his actions.

The locus classicus is the McNaughton case 1843 where the accused killed the secretary of the British Prime Minister in the belief that the Prime Minister was conspiring against him. He was acquitted of the charge by reason of insanity. This rule created a presumption of sanity unless rebutted by the defense.

 

Intoxication-

The provision for intoxication is stipulated under Sections 85 and 86 of the IPC. The difference between these sections is that in the former, a person is intoxicated involuntarily while in the latter, a person is intoxicated voluntarily.

Thus, by virtue of Section 85, the person is not criminally liable. However, under Section 86, the defense of intoxication does not avail the person.

 

Essential Elements-

For the defense to be established under Section 85, the accused must satisfy the following:

• He was incapable of knowing the nature of his act
• He was incapable of knowing that his acts were wrong or contrary to law
• His acts were as a result of intoxication
• The thing intoxicated was administered against his will

In Jethu ram v. State of MP 1960 CriLj 1093, the accused was persuaded by his father to drink alcohol. The defense of intoxication did not avail him because he had knowledge of the drink which was administered to him. The same decision was reached in Arun Jaysingh Khandagale v State of Maharashtra 1999.

 

Consent-

It is provided under Section 87 – 91 of the IPC. It means to agree to perform a thing. It means that the victim gave consent for the harm to occur (Section 87) or the act was done for the benefit of the victim (Section 88) or a guardian consented to take the risk for the benefit of a child (Section 89).

It occurs in non-fatal offenses where a criminal act may have been committed. The defense of consent is available where the victim consents to the activity occurring. Consent comprises consciousness, deliberation and knowledge of the risk intended.

This means a person who gives consent does so consciously, deliberately and with full knowledge of the risk.

Consent is not valid where:

• It is given under fear or injury or misconception of fact
• The person involved is aware or has reason to believe that the consent is given under fear, injury or misconception
• It is given by an intoxicated person
• It is given by a person of unsound mind
• It is given by a person under 12 years without maturity of understanding of the consequences

Essential Elements

For the defense to be established under Section 87, the accused must satisfy the following:

• That the person consented to the risk
• Such consent must be made expressly or impliedly
• The consent was not intended to cause death or grievous harm
• The person giving the consent is above eighteen years old

An example is illustrated where A and B agree to wrestle each other. Such an agreement is consent for either of them to suffer any harm which occurs without liability. Thus, where B suffers an injury, A is not liable.

For the defense to be established under Section 88, the accused must satisfy the following:

• That the person consented to the risk
• Such consent must be made expressly or impliedly
• The consent was not intended to cause death or grievous harm
• It was exercised in good faith
• The act was done for the benefit of the victim

An example of this occurs in the hospital where a doctor is to perform a surgery with A’s consent and the surgery was done in good faith and A dies. The defense of consent would avail the doctor.

For the defense to be established under Section 89, the accused must satisfy the following:

• That the guardian consented to the risk
• Such consent was made expressly or impliedly
• The consent was not intended to cause death or grievous harm
• It was exercised in good faith
• The act was done for the benefit of the child or an insane person

 

Communication-

A person who disseminates information which causes harm to another in good faith for the benefit of such person is excluded from liability.

For the defense to be established under Section 93, the accused must satisfy the following:

• That the communication was made in good faith
• Such communication would benefit the person to whom it is made

 

Duress-

Where a person is compelled by threats to perform an act which constitutes an offense, the defense of Duress would avail him. For example, a security man compelled to open the door of a bank for armed robbers to enter and steal would be availed of this defense. This is subject to murder and offenses punishable by death.

For the defense to be established under Section 94, the accused must satisfy the following:

• There was a compulsion to do an illegal act
• Such compulsion was made by threats of instant death
• It caused reasonable apprehension
• It excludes murder and offenses punishable by death

 

Trifles-

This is provided in the Latin maxim, “De minimis non curat lex” which means, the law does not concern itself with trifles.

For the defense to be established under Section 95, the accused must satisfy the following: That

• The harm is slight
• No person of ordinary sense and temper would complain of such harm

In Krishnaal v State, 1998 CriLj 990, the court held that there was nothing that suggested that A provoked the accused which could justify him in exercising Section 96 of the IPC.

 

Private Defense-

Although, the state is vested with the responsibility of protecting its citizens against imminent dangers, there are circumstances which permit a private person to use reasonable force to protect himself or property.

Any offense which arises as a result of that constitutes an exception to criminal liability. It is provided in Sections 96 – 106 of the IPC.

The right of self-defense provided under Section 96 is qualified and not absolute. It is available where a person defends his body or the body of another; his property or the property of another against theft, robbery, mischief or criminal trespass. This section is restricted to a reasonable apprehension of danger and the force used must commiserate with that of the assailant.

According to Section 99, there is no right of private defense where;

• There is no reasonable apprehension of death or grievous harm
• The person knows or believes that the person doing the act is a public servant
• The person knows or believes that the person doing the act is acting under the direction of a public servant
• Time is available to have the recourse of the protection of public authority
• The force used is not commiserated with that of the assailant.

Conclusion-

Criminal liability makes a person liable for crimes committed by him and although IPC recognized the fact that criminal acts must be punished, it also took cognizance of the fact that not all acts are to be punished.

Acts which is justifiable or devoid of mens rea needs to be exempted from criminal responsibility. This, the law has put in place. The accused person should also be provided the right to be heard in all these circumstances.